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EXHIBIT 10.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is entered into as of
December 21, 1997, between the undersigned stock holders (the "Stockholders") of
AMERICAN BANKERS INSURANCE GROUP, INC., a Florida corporation (the "Company"),
and AMERICAN INTERNATIONAL GROUP, INC., a Delaware corporation ("Parent").
WHEREAS, concurrently with the execution and delivery of this
Agreement, AIGF, INC., a Florida corporation and a wholly owned subsidiary of
Parent ("Newco"), Parent and the Company have entered into an Agreement and Plan
of Merger dated as of December 21, 1997 (the "Merger Agreement"), providing for
the merger of the Company with and into Newco (the "Merger") pursuant to the
terms and conditions of the Merger Agreement, and setting forth certain
representations, warranties, covenants and agreements of the parties thereto in
connection with the Merger; and
WHEREAS, as an inducement and a condition to Parent entering into
the Merger Agreement, pursuant to which each Stockholder will receive the Common
Stock Merger Consideration (as defined in the Merger Agreement) in exchange for
each share of Common Stock, par value $1.00 per share, of the Company ("Company
Common Stock") owned by such Stockholder, the Stockholders each have agreed to
enter into this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. Representations of Stockholders. Each of the Stockholders
severally represents as to himself or herself that such Stockholder:
(a) is the holder in the capacity set forth on Exhibit A hereto of
that number of shares of Company Common Stock set forth opposite such
Stockholder's name on Exhibit A (such Stockholder's "Shares");
(b) does not beneficially own (as such term is defined in the
Securities Exchange Act of 1934, as amended (the "1934 Act")) any shares
of Company Common Stock other than his or her Shares, but excluding any
shares of Company Common Stock which such Stockholder
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has the right to obtain upon the exercise of stock options and upon the
conversion of Convertible Notes (as defined in the Merger Agreement)
outstanding on the date hereof except, in the case of Xx. Xxxxxx for
Shares subject to an option granted prior to the date hereof to a third
party;
(c) has the right, power and authority to execute and deliver this
Agreement and to perform his obligations under this Agreement, and this
Agreement has been duly executed and delivered by such Stockholder and
constitutes a valid and legally binding agreement of such Stockholder,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles; and such execution, delivery and
performance by Shareholder of this Agreement will not (i) conflict with,
require a consent, waiver or approval under, or result in a breach of or
default under, any of the terms of any contract, commitment or other
obligation (written or oral) to which such Stockholder is a party or by
which such Stockholder is bound; (ii) violate any order, writ, injunction
decree or statute, or any rule or regulation, applicable to Stockholder or
any of the properties or assets of Stockholder; or (iii) result in the
creation of, or impose any obligation on such Stockholder to create, any
lien, charge or other encumbrance of any nature whatsoever upon the
Shares; and
(d) the Shares are now and will at all times during the term of this
Agreement be held by such Stockholder, or by a nominee or custodian for
the account of such Stockholder, free and clear of all pledges, liens,
proxies, claims, charges, security interests, preemptive rights and any
other encumbrances whatsoever with respect to the ownership, transfer or
voting of such Shares; and there are no outstanding options, warrants or
rights to purchase or acquire, or other agreements relating to, such
Shares other than this Agreement.
The representations and warranties contained herein shall be made as of the date
hereof and as of each date from the date
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hereof through and including the date that the Merger is consummated.
2. Agreement to Vote Shares. Each of the Stockholders severally
agrees to vote his or her Shares and any New Shares (as defined in Section 7
hereof), and shall cause any holder of record of his or her Shares or New Shares
to vote, (a) in favor of adoption and approval of the Merger Agreement and the
Merger (and each other action and transaction contemplated by the Merger
Agreement and this Agreement) at every meeting of the stockholders of the
Company at which such matters are considered and at every adjournment thereof
and (b) against any action or proposal that would compete with or could serve to
materially interfere with, delay, discourage, adversely affect or inhibit the
timely consummation of the Merger. Any such vote shall be cast or consent shall
be given in accordance with such procedures relating thereto as shall ensure
that it is duly counted for purposes of determining that a quorum is present and
for purposes of recording the results of such vote or consent. Each Stockholder
severally agrees to deliver to Parent upon request a proxy substantially in the
form attached hereto as Exhibit B, which proxy shall be coupled with an interest
and irrevocable to the extent permitted under Florida law, with the total number
of such Stockholder's Shares and any New Shares correctly indicated thereon.
Each Stockholder also agrees to use his reasonable efforts to take, or cause to
be taken, all action, and do, or cause to be done, all things necessary or
advisable in order to consummate and make effective the transactions
contemplated by this Agreement.
3. No Voting Trusts. After the date hereof, the Stockholders
severally agree that they will not, nor will they permit any entity under their
control to, deposit any of their Shares in a voting trust or subject any of
their Shares to any arrangement with respect to the voting of such Shares other
than agreements entered into with Parent or Newco.
4. No Proxy Solicitations. Each of the Stockholders severally agrees
that such Stockholder will not, nor will such Stockholder permit any entity
under their control to, (a) solicit proxies or become a "participant" in a
"solicitation" (as such terms are defined in Regulation 14A under the 0000 Xxx)
in opposition to or competition with the consummation of the Merger or otherwise
encourage
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or assist any party in taking or planning any action which would compete with or
otherwise could serve to materially interfere with, delay, discourage, adversely
affect or inhibit the timely consummation of the Merger in accordance with the
terms of the Merger Agreement, (b) directly or indirectly encourage, initiate or
cooperate in a stock holders' vote or action by consent of the Company's
stockholders in opposition to or in competition with the consummation of the
Merger, or (c) become a member of a "group" (as such term is used in Section
13(d) of the 0000 Xxx) with respect to any voting securities of the Company for
the purpose of opposing or competing with the consummation of the Merger;
provided, that the foregoing shall not restrict any director of the Company from
taking any action such director believes is necessary to satisfy such director's
fiduciary duty to shareholders of the Company.
5. Transfer and Encumbrance. On or after the date hereof, each of
the Stockholders severally agrees not to voluntarily transfer, sell, offer,
pledge or otherwise dispose of or encumber ("Transfer") any of his or her Shares
or New Shares prior to the earlier of (a) the effective date of the Merger or
(b) the date this Agreement shall be terminated in accordance with its terms.
Notwithstanding anything to the contrary in this Agreement, (A) Xx. Xxxxxx shall
be permitted to Transfer (i) Shares or New Shares Transferred for net after-tax
proceeds of not in excess of $5,000,000, and (ii) Shares or New Shares
Transferred pursuant to any court order or settlement of any legal proceeding
and (B) Xx. Xxxxxx shall be permitted to Transfer Shares or New Shares
Transferred for net after-tax proceeds of not in excess of $2,000,000.
6. Legend. As soon as practicable after the execution of this
Agreement, each Stockholder shall surrender to the Company the certificates
representing the Shares in his or her possession (and within 30 days the Shares
not in his or her possession), shall cause the following legend to be placed on
the certificates representing such Shares and shall request that such legend
remain thereon until the earlier of (i) expiration or termination of the
Agreement or (ii) the consummation of the Merger:
"The shares of capital stock represented by
this certificate are subject to a Voting
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Agreement, dated as of December 21, 1997, among the Stockholders
named therein and American International Group, Inc., which, among
other things, (a) restricts the sale or transfer of such shares
except in accordance therewith, and (b) restricts the voting of such
shares except in accordance therewith."
In the event that Parent requests that a proxy be executed and delivered by
Stockholder to it pursuant to Section 2 hereof, Stockholder shall promptly
surrender to the Company the certificates representing the Shares covered by
such proxy and cause the foregoing legend to be revised to add to the end of
such legend the following words:
", and such shares are also subject to an irrevocable proxy under
Section 607.0722 of the Florida Business Corporation Act."
Stockholder shall provide Parent with reasonably satisfactory evidence of its
compliance with this Section 6 on or prior to the date five business days after
the execution hereof with respect to Shares in his possession (or within 30 days
with respect to Shares not in his possession) or of the request relating to
Stockholder's proxy, as the case may be.
7. Additional Purchases. Each of the Stockholders severally agrees
that in the event (i) any stock dividend, stock split, recapitalization,
reclassification, combination or exchange of shares of capital stock of the
Company on, of or affecting the Shares of a Stockholder, (ii) such Stockholder
purchases or otherwise acquires beneficial ownership of any shares of Company
Common Stock after the execution of this Agreement, or (iii) such Stockholder
voluntarily acquires the right to vote or share in the voting of any shares of
Company Common Stock other than the Shares (collectively, "New Shares"), such
Stockholder agrees to deliver promptly to Parent upon request of Parent an
irrevocable proxy substantially in the form attached hereto as Exhibit B with
respect to such New Shares. Each of the Stockholders also severally agrees that
any New Shares acquired or purchased by him or her shall be subject to the terms
of this Agreement to the same extent as if they constituted Shares.
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8. Specific Performance. Each party hereto severally acknowledges
that it will be impossible to measure in money the damage to the other party if
the party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other party will not have an adequate remedy at law or
damages. Accordingly, each party hereto severally agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that the other party has an adequate remedy at law. Each
party hereto severally agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with any other
party's seeking or obtaining such equitable relief.
9. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns and shall not be assignable without the written consent of all other
parties hereto.
10. Entire Agreement. This Agreement supersedes all prior
agreements, written or oral, among the parties hereto with respect to the
subject matter hereof and contains the entire agreement among the parties with
respect to the subject matter hereof. This Agreement may not be amended,
supplemented or modified, and no provisions hereof may be modified or waived,
except by an instrument in writing signed by all the parties hereto. No waiver
of any provisions hereof by any party shall be deemed a waiver of any other
provisions hereof by any such party, nor shall any such waiver be deemed a
continuing waiver of any provision hereof by such party.
11. Miscellaneous.
(a) This Agreement shall be deemed a contract made under, and
for all purposes shall be construed in accordance with, the laws of the
State of Florida.
(b) If any provision of this Agreement or the application of
such provision to any person or circumstances shall be held invalid by a
court of competent jurisdiction, the remainder of the provision
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held invalid and the application of such provision to persons or
circumstances, other than the party as to which it is held invalid, shall
not be affected.
(c) This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
(d) This Agreement shall terminate upon the earliest to occur
of (i) the effective time of the Merger, (ii) termination of the Merger
Agreement or (iii) September 30, 1998.
(e) All Section headings herein are for convenience of
reference only and are not part of this Agreement, and no construction or
reference shall be derived therefrom.
(f) The obligations of the Stockholders set forth in this
Agreement shall not be effective or binding upon any Stockholder until
after such time as the Merger Agreement is executed and delivered by the
Company, Parent and Newco, and the parties agree that there is not and has
not been any other agreement, arrangement or understanding between the
parties hereto with respect to the matters set forth herein.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first written above.
AMERICAN INTERNATIONAL GROUP, INC.
By: /s/
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Name:
Title:
THE STOCKHOLDERS:
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Name:
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Name:
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first written above.
American International Group, Inc.
By:
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Name:
Title:
THE STOCKHOLDERS:
/s/ Xxxxxx X. Xxxxxx
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Name:
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Name:
X. Xxxx/X. Xxxxxx
Foundation
/s/ R. Xxxx Xxxxxx
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By: R. Xxxx Xxxxxx
R. Xxxx Xxxxxx Revocable Trust
/s/ R. Xxxx Xxxxxx
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By: R. Xxxx Xxxxxx, Trustee
Xxxxxx Corporation
/s/ R. Xxxx Xxxxxx
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By: R. Xxxx Xxxxxx
